The other day I was at an ASA meeting and the topic of the night was guardianship and estate planning. There were two lawyers presenting about the issues parents of kids with disabilities need to consider. While these aren’t always the most pleasant things to think about, making sure there is a plan for when your child becomes an adult or when both parents pass is essential. I am not a lawyer so none of the information here should be construed as legal advice. For more information, I would highly recommend contacting a lawyer who specializes in estate planning, special-needs trusts, and guardianship.
A Will
A will is a legal declaration by which a person names one or more persons to manage his estate and provides for the transfer of his property at death. In the will, you will also name the person who you would like to care for your minor children. The lawyers who were presenting to the ASA group indicated that all parents should, at minimum, have a will on file but there were a few other things parents need to consider and potentially have in place. They warned that if you only have a will in place, when you pass all your property will go into escrow and not be available to your beneficiaries until all financial and legal matters have been settled which could take months or years. They suggested setting up a trust in addition to a will.
A Trust
A trust is a document that spells out the rules that you want followed for property held in trust for your beneficiaries. The particulars of trusts are best explained by a lawyer, but in general the benefits of a trust are reduced estate tax liability, property in your estate is more protected, and probate is avoided. This means that the property you have in the trust will be more readily available to your beneficiaries. You can also set up a special needs trust which has special rules and regulations to ensure your children with special needs are cared for financially.
Guardianship
In your will you declare who you would like to care for (be the legal guardian) for your minor children in the event of your death. Guardianship is something completely different. At the age of 18 your child will be legally be considered an adult. Legal guardianship a legal right given to a person to be responsible for the food, health care, housing, and other necessities of a person deemed fully or partially incapable of providing these necessities for himself or herself. For your child, when they turn 18 they may not be in a position to care for themselves independently so you may consider filing for legal guardianship. This is not a decision made lightly because although you can continue to protect your child and ensure their needs are met, guardianship status significantly limits the rights of the individual. For example, the individual can not vote or get married. A legal guardianship can be ended when the person is able to care for themselves by going to court and getting the guardianship terminated.
If you’ve had experience with estate planning or guardianship, please share your experiences. If you know of a good lawyer in your area, please feel free to share that information as well. This is one thing that is not discussed enough, but it is so important to have these things in place as soon as possible.
